Today, DHS created a new process allowing the spouses, children and parents of US citizens (immediate relatives) to apply for a provisional waiver of unlawful presence while they remain in the United States. The new process does NOT change the immigration law itself, but simply allows those who apply to remain in the United States (rather than abroad) while their waiver requests are being processed.

When a US citizen sponsors a spouse, child or parent who had entered the country illegally, the law requires that the intending immigrant return to his or her own country to obtain the green card, unless that person is grandfathered under Section 245(i) of the INA. Grandfathered immigrants who filed certain petitions prior to April 30, 2001, may pay a $1000 fine and adjust status in the United States. All others, to complete the process, must return abroad to do so. However, a different immigration law then subjects that person to a 3- or 10- year bar upon re-entering the US once they leave the country. A waiver of the 3- or 10- year bar could previously only be requested once the intending immigrant had departed the United States, and often took many months to adjudicate. During this time, the intending immigrant was separated from loved ones and waiting abroad for the waiver to be approved, and did not know whether or not the waiver would be approved.

The changes put in place today, will allow those seeking a waiver to apply for the waiver while still physically present in the United States. Once approved, the immigrant must still travel abroad to obtain the green card after a consular interview in their home country. The waiver is still necessary and the travel outside the country is still necessary for those who apply.

There are many benefits of these changes in the law. For example, the provisional waiver may reduce the time that US citizens are separated from their relatives who apply. In addition, those traveling abroad to apply for their residency would know ahead of time that they have, at least, a provisional approval of their cases.

To be eligible for the provisional unlawful presence waiver:
1. The applicant must be physically present in the United States;
2. The applicant must be at least 17 years old at the time of filing;
3. The applicant must be the beneficiary of an approved immigrant visa petition(Form I-130)as an immediate relative;
4. The applicant must have an immigrant visa pending with the US Department of State for which s/he has already paid;
5. The applicant must believe they are, or will be at the time of the interview, inadmissible to the US due to unlawful
presence accrued;
6. The applicant must meet all other requirements as listed in the Regulations and Form I-601A.

The filing fee for the waiver will be $585.00. The Form I-601A is expected to be released on March 1, 2013.

The approval of the waiver will still require that the applicant demonstrate that if he or she is refused admission to the United States, this refusal would result in extreme hardship to his or her US citizen spouse or parent. Extreme hardship that would be suffered by a US citizen child DOES NOT COUNT and, therefore, would not alone qualify an applicant for the waiver.

What are the risks or pitfalls of filing the waiver?

The first problem with the waiver is that applicants still have to travel abroad to obtain the final waiver and issuance of the immigrant visa. This can be a costly and risky proposition. Although the applicant will be traveling abroad with an approved provisional waiver in hand, the waiver is just that: provisional. This means that the Consulate can still choose to deny the waiver and/or visa issuance. Reasons for denial may include past exclusions, deportations or removals from the United States; criminal history; and, other inadmissibility grounds including past fraud entering the US. If the Consulate denies the case, the applicant will then be required to remain out of the country for the applicable period of three or ten years.

The second issue raised is whether those who apply will be opening themselves up to removal proceedings here in the United States. The DHS states in the initial instructions that USCIS does not “envision” initiating removal proceedings or referring applicants to ICE. Yet, this is far from a guarantee. In addition, DHS states that it will continue to follow the existing policy governing issuance of Notices to Appear (NTAs) and referrals to ICE, when said person is considered to be a DHS “enforcement priority,” which means that the individual has a criminal history, has committed fraud, or otherwise poses a threat to the national security. However, we wish to note that this is simply a current DHS “policy” which, like all policies, is subject to change depending on the administration in power at any given time, or any changes made thereto. DHS even goes on to warn that “[I}f USCIS discovers acts, omissions, or post-approval activity that would meet the criteria for NTA issuance or determines that the provisional waiver was granted in error, USCIS may issue an NTA . . . ”

Another issue with the new process which is still unclear at this time is the fact that an applicant must have an immigrant visa “pending” with the US Department of State to apply for the waiver. There are thousands of people present in this country who have received approvals of I-130 Immediate Relative Petitions years ago from USCIS. Those people were scared to travel abroad to apply for the waiver for fear of denial and were waiting for a change in the law such as this one. Yet, once those persons did not travel abroad to pick up their immigrant visas, their cases would normally be cancelled with the Department of State after a time (usually one year). As such, it appears that many of these persons may have to re-file (and re-pay for and wait again) for approvals of new I-130 petitions unless DOS allows or permits some way to reopen these cases to continue with the process. We are currently waiting on more guidance on this issue and it remains to be seen how or if this problem will be remedied.

Other more minor issues with the new waiver procedures include: the fact that the applicant has to appear for biometrics collection; applicants currently in removal proceedings are not eligible for the waiver; applicants awaiting decisions on their waivers are not granted any interim status or benefits; and the fact that there is no appeal from a denial of the waiver.

I had a client tell me the other day that a different immigration law firm promised him a work permit “quickly.” Please be warned. There is no such thing as a “quick” work permit. If someone (a lawyer or a service) is promising you something that seems to good to be true: it probably is! In order to qualify for a work permit, several criterion must be met. The work permit is only available when you ALSO have another case pending or resolved with ICE or USCIS. One may not file for a work permit by itself.

For example, when a person marries a US citizen and is in the process of applying for residency here in the United States, he or she may also apply for a work permit. When a nonimmigrant student is present in the US on Optional Practical Training (OPT), they would qualify to apply for a work permit. A person who is currently in removal proceedings and who already filed specific applications with the Immigration Court or with the USCIS, to include Cancellation of Removal or Political Asylum (after a specific time period) may also be entitled to apply for a work permit while awaiting trial. Persons granted political asylum, withholding of removal, TPS, DACA, or other Deferred Action may also be granted a work permit. Likewise, those with a final order of removal against them, who are awaiting removal from the United Sates may, in certain circumstances, qualify for a work permit.

Work permits are filed on Form I-765. Processing may take up to 90 days and requires biometrics (fingerprinting). The filing of the work permit also requires that the applicant demonstrate and file with the application evidence regarding the basis of their eligibility to work. For example, students must submit copies of the Form I-20. Those in removal must show receipts for pending applications before the Court and notices regarding up-coming Court dates. Adjustment applicants filing separate from their applications must show proof of a pending I-485 application.

There is a common misconception that persons may simply come to this country and file for a work permit. A client contacted me from Mexico last week. He thought he could come to the United States on his visitor’s visa and file for a work permit. This is not permissible. Unless one of the qualification mentioned above (or those listed on the form I-765) are met, permission to work will not be granted. There is no such thing, therefore, as a ‘quick’ work permit. If a lawyer or legal professional tells you they can obtain a quick work permit for you or your client, please consider getting a second opinion. You may find more information about the Form I-765 at http://www.USCIS.gov.

Next week the new immigration laws regarding young immigrants will finally be revealed in full. What does this mean for us? Although these laws may help some, the regulations seem to exclude more people than they help. They leave a lot of uncertainty and worry amongst potential applicants as well.

The new laws will be available to those who are in an illegal status at this time, and who entered the US prior to their 16th birthday. Thus, those who were already 16 upon entry are excluded. Unfortunately, we have come across several clients who missed this deadline by a few days or a few weeks. Should a person be excluded from DREAM because they were 16 years old and three weeks when their parents brought them here? It seems a bit of an arbitrary cut-off.

The applicant also has to have lived in the US for at least five years continually with only brief interruptions. The burden will be on the applicant to prove they have been present in the US for at least the last five years. This can be proved by showing medical records, school records, phone bills, or other documentary evidence regarding physical presence in the United States. The rules seemingly indicate that the applicant may have left the US for brief periods of time, yet there is no hard and fast rule as to what will constitute "brief" absences. Will the old "Fleuti" doctrine of 180 days apply? Or will DREAMERS be held to a stricter standard? Hopefully, more concrete guidance will be released next week with respect to the new laws.

Those applying must currently be between the ages of 15 and 30. I have had clients cut off by being both too young or by being too old. It’s a shame that someone who fits all the other requirements can miss benefiting from the law because they turned 30 a few months ago or because they are now 14.

The law will also require applicants to be currently enrolled in a high school program, or completed HS or a GED. They can also be enrolled in college or serving in the military in some instances. We have also come across persons who never finished high school. They had to work to help support their family or to send money back to their family at home. They do not speak English or even know they could attend school here. These persons may too be excluded. Some persons are enrolling in high school now or starting to enroll in local or online GED programs. I bet the organizations that offer GEDs are seeing a sudden boon in enrollees. But will enrollment in a GED program be sufficient to meet the requirements of this law? The law says persons may be "currently enrolled" in high school to qualify. So will such GED programs suffice? It will be interesting to find this out.

What about those who have been arrested? Those with more than one arrest or any "significant" crime may not be eligible for relief under the law. Then what will happen if they choose to apply and are denied? Will they be placed in removal proceedings? Will they be deported? Presumably not. But I am not yet convinced that this will ultimately be the case. Anyone with more than a traffic ticket should be extremely careful of this law and consult an immigration attorney prior to applying.

So what will the new law provide to applicants? Those who "pass" all these tests will get a work permit for two years. With this permit they will be able to get a social security number and renew or obtain a drivers license. This relief will need to be renewed every two years. It does not grant residency or lead to a green card. Spouses are not automatically included. Your children are not necessarily included. The law does not legalize a person or permit them to change status.

The filing free will be $465 total per application. The forms and filing procedures will be released next week. Those already in removal proceedings may also apply with USCIS.

The real question everyone wants to know is whether those who apply are at risk of deportation in case of a change in the administration. While we are told that applicants who are denied relief are not being turned over to ICE for removal, the effects of the law remain to be seen. One USCIS officer in Connecticut actually warned us to tell clients not to apply under the law. What does she know that we do not know? Hopefully she was just being overly cautious. To be continued after the regulations are released next week.

One common cause for Illegal Immigration among immigrants is a fear for one’s own safety based on a reasonable threat from their native country. In this situation, it is possible for an immigrant to be granted what is called political asylum.

In order to help immigrants escape the threat of persecution and oppression, The United States enacted "The Refugee Act"; which states that political asylum may be granted to those who have a well-founded fear that returning to their native country will result in persecution, or violence.

Political Asylum does not apply to those that have committed crimes in their native country and wish to evade justice, but instead was enacted to assist those facing persecution related to race, sex, religion or nationality.

Professional Assistance

Obtaining legal citizenship in The United States can be a daunting task, filled with many legal obstacles. If you or a loved one is seeking assistance from an experienced Immigration attorney in New York, contact Susan B. Henner at (914)358-5200 for a free consultation or more information.

Immigration is a priority for millions of people around the world who wish to improve the quality of their life. Some immigrants are attempting to escape war, oppression and poverty, while others simply desire to start a new life in a new place. Immigration occurs legally and illegally all over the world. Illegal Immigration is essentially defined as entering a country without authorization. Entering the United States illegally is a crime and may lead to prison time or deportation.

Legal Methods of Entry

There are different ways to legally immigrate to the United States of America depending upon your specific situation. Those specifics include your country of origin, the reasons you wish to immigrate, your background, and your ability to be independent. Legal Immigration into the United States is not an easy process and requires a good deal of time, effort, and patience.

Some of the ways to acquire legal residency in the US include the act of obtaining a Visa. A Visa is an endorsement on a passport indicating that the holder is allowed to enter, leave, or stay for a specified period of time in a country.

Family-Based Visa: A Family based Visa is an Immigrant Visa that is reserved for foreign relatives of current legal US citizens and Lawful Permanent Residents.

K-1 Visa (Fiance Visa): A Visa that is typically issued to the fiance/fiancee of a United States citizen. This kind of Visa also requires a certificate of marriage between the immigrant and the U.S. citizen.

O-1 Visa: A Visa available to foreign nationals who have extraordinary ability in science, art, education, business, or athletics that has been demonstrated via international acclaim and recognized in the field through extensive documentation.

If you need help with Immigration in New York, contact NY Immigration Attorney Susan B. Henner at (914)358-5200 for a free consultation or more information.

Now that the Supreme Court is upholding the national health care law, it is important that immigrants know how it will effect them. Undocumented immigrants will not be able to participate in the new mandate. However, if you are a legal immigrant with a valid Green card then you are subject to the mandates requirements and must obtain health insurance in 2014.

Immigrants that are in the US via student visas and some work visas are not eligible due to their "nonimmigrant" status and will not be subject to the individual mandate. Documented immigrants must live within the United States for a total of 5 years before they are eligible for Medicaid, with exceptions for asylees and refugees and those who fall within poverty guidelines.

Citizenship

Once the new health care bill is fully implemented, it is estimated that over 30 million US residents will be without health insurance, while 11.5 million of those residents will be undocumented immigrants. That is why it is important to apply for US citizenship. If you or a loved one is seeking assistance from an experienced immigration attorney in the State of New York, contact Susan B. Henner at 1.888.733.0141 for a free consultation or more information.